Koushal Kishore vs State of M.P.

Chandra Bhushan Bajpai, J.�By this common judgment, the above three criminal appeals will be decided as they arise out of the same judgment. Challenge in this appeal is to the judgment of conviction and order of sentence dated 28-1-1999 passed by the 6th Additional Sessions Judge, Durg in Sessions Trial No. 461/96 whereby and whereunder after holding appellants Kaushal Kishore and Sanjay Kumar guilty for commission of offence under Sections 363, 366 and 376 of Indian Penal Code (in brevity ''IPC'') and appellants Mohanlal and Arun Kumar guilty for commission of offence under Section 363 of I.P.C., convicted and sentenced the appellant as mentioned below with a direction to run both the substantive jail sentence concurrently awarded to Koshal Kishore and Sanjay Kumar.

Conviction is impugned on the ground that without there being an iota of evidence, learned Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality.

Two prosecutrix in this case are sisters. As per prosecution case, on 7-6-1996, prosecutrix P.W. 11 (name not mentioned) along with her elder sister another prosecutrix (name not mentioned, she died for other cause during trial but before her examination) when not returned home and the same was informed by their mother Rajkumari to her husband P.W. 12 Naradlal Sahu (father of both the prosecutrix), he went for a search. He was informed by Dulasiya that they kept their bicycle in the noon and left. P.W. 12 inquired about their whereabouts in the night. On 8-6-1996 he reached to the police station Utai and informed about the incident regarding missing of his both daughters i.e. both the prosecutrix. Police started investigation in Gum Insan. P.W. 9 D.S. Rajput, Assistant Sub Inspector, recovered both the prosecutrix from the house of Gorelal Yadav near Gayatri Mandir at Sarani. P.W. 11 Prosecutrix was recovered from appellant Sanjay Kumar and the prosecutrix (since deceased) was recovered from appellant Kaushal Kishore on 18-6-1996 before Panch witnesses. The Investigating Officer prepared the recovery panchnama Ex. P-14 and gave both the prosecutrix to P.W. 12 Naradlal Sahu on supurdnama vide Ex. P-15. As per request of Utai police vide Ex. P-17, after obtaining the necessary permission for examination, Dr. Mamta Pandey, P.W. 10, examined prosecutrix P.W. 11 and noticed no external or internal injuries and opined that no definite opinion can be given about recent intercourse. She also prepared two slides from vaginal swab and handed it over to the concerned constable and gave her report vide Ex. P-28. On request vide Ex. P-18 P.W. 10 also examined the another prosecutrix (since deceased) on the same day and noticed no external or internal injuries and opined no definite opinion regarding recent intercourse could be given vide Ex. P-30. She also examined the clothes of both the prosecutrix on the basis of memo sent to her as Ex. P-19 and P-20 and gave her report and opined that clothes may be sent for chemical analysis vide Ex. P-29 and P-31. During investigation, clothes of the prosecutrix were seized by seizure memo Ex. P-1 and P-2. Two bicycles were seized from the possession of Narayan Prasad Chandrakar vide Ex. P-3, one bicycle seized from Naradlal Sahu" which was used by both the prosecutrix when they were going out on the date of incident. The 10 seized Dakhil Kharij register Ex. P-6-C, Ex. P-7-C from P.W. 7 Heeradas Kurre, the then Head Master, Govt. Girls Middle School, Dhanora in relation to the date of birth of the prosecutrix vide seizure memo Ex. P-4. As per the document, the date of birth of prosecutrix (since deceased) was 26-2-1978 and date of birth of another prosecutrix P.W. 11 was 14-7-1981. As per the date of birth of prosecutrix (since deceased) her age was above 18 years and age of prosecutrix PW 11 was 14 years 11 months and 23 days on the date of incident. Dakhil Kharij register is Ex. P-6 and P-7. He also gave the certificate Ex. P-8 and P-9 regarding the date of birth of both the prosecutrix on the basis Dakhil Kharij register. Appellant Sanjay Kumar and Kaushal Kishore were examined by the P.W. 8 Dr. R.N. Turre who opined after examination of both the appellants Sanjay Kumar and Kaushal Kishore that they were clinically capable of committing intercourse. He gave his report as Ex. P-10 and P-11. He also examined the inner clothes of these two appellants and advised for chemical analysis for presence of encircled stains vide Ex. P-12 and P-13. On 19-6-1996, D.S. Rajput P.W. 9 lodged FIR and registered the crime under Sections 363, 366 and 376/34 of I.P.C. by registering the crime No. 86/96 against all the appellants after inquiry conducted in Gum Insan 15/96. The slides prepared and handed over to the concerned constable by P.W. 10. Dr. Mamta Pandey were seized from the concerned constable vide seizure memo Ex. P-21. Undergarments of appellants Sanjay Kumar and Kaushal Kishore were seized vide Ex. P-22 and P-23. Spot map was prepared by the I.O. vide Ex. P-24. The articles so seized were sent for chemical analysis "vide memo Ex. P-25 which was received in FSL Raipur vide receipt Ex. P-26. FSL, Raipur after chemical analysis gave its report vide Ex. P-27 and found stains of semen and human spermatozoa over the clothes and slides of both the prosecutrix and also in the undergarments of appellants Kaushal Kishore and Sanjay Kumar. The presence of semen stains found in the undergarments article A, B, E and F were not sufficient for serologist examination. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (in brevity ''Code''). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg on 31-7-1996 who in turn committed the case to the court of Session, Durg. Learned Additional Sessions Judge received the case on transfer for trial.

Before trial Court appellants Sanjay Kumar and Kaushal Kishore were charged for Sections 363, 366 and 376 of IPC, in alternate Section 376(2)(g) of the IPC and other appellants Arun Kumar and Mohanlal were charged under Sections 363, 366 and 376(2)(g) of the IPC. All the appellants denied the charges and requested for trial.

During trial, in order to prove the guilt of the accused appellants, the prosecution examined as many as 12 witnesses. The appellants were examined under Section 313 of the Code in which they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question.

The appellants examined one defence witness D.W. 1 Bharatlal Yadav who deposed that the appellants Sanjay Kumar and Kaushal Kishore were in his wedding party on 7-6-1996 and on next day, he saw them again lifting the articles of his house regarding marriage party.

After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned.

I have heard learned counsel for the appellants and perused the record of the trial Court.

Learned counsel for the appellants vehemently argued that the age of the prosecutrix P.W. 11 is the core issue in the present case. Indisputably the prosecutrix (since died) was above the age of 18 years. Her case is on different footing from P.W. 11.. As advised by P.W. 10 Dr. Mamta Pandey, X-ray was not conducted for assessing her age. There was no birth certificate of the hospital or from the Kotwari entries regarding birth in the present case. Hence no conclusive proof regarding age is collected and adduced. Though P.W. 3 Kotwar Ratan Das was examined but he had not said anything regarding the entries in the Kotwari book. I.O. P.W. 9 deposed in para 25 that he had not seized Kotwari register. He further deposed that on account of non-availability of said register, it was not seized. On the other hand, P.W. 12 Naradlal deposed in para 7 that both the daughters born at village Khamaria and birth of children bora in the village are registered. Then why the said Kotwari entry regarding registration of birth is not collected or seized makes the prosecution case suspicious because the only evidence regarding the age is of P.W. 7 Heera Das Turre. As per Dakhil Kiharij register he deposed regarding the date of birth but this witness is not subscriber of original register in which the entry was made on the basis of transfer certificate because this was a middle school. The students after pass out in class 5 from other school takes admission in this school with the help of transfer certificate. Transfer certificate is not collected and adduced. Thereby it is doubtful that the said birth certificate contains the exact date of birth of prosecutrix P.W. 11. The best evidence available i.e. Kotwari Register regarding registration of birth is not collected and adduced. She was in the border line for the age of 16 years. If her age is found to be over the age of 16 she may give her consent for the alleged intercourse. The conduct of both the prosecutrix is also material as both of them voluntarily went along with the appellants to a place which was far away from the place of their residence. As per prosecution story, both lived for 8 days in a single room and as per story, they had a partition of cloth and act of intercourse was committed. As per prosecutrix P.W. 11 in para 5, appellant Kaushal Kishore committed rape with her elder sister after removing her cloths but as per entire evidence she is not the eye-witness or she had not heard any conversation between her elder sister and Kaushal Kishore. Appellant Kaushal Kishore may not be convicted for any of the offence as his case was a case of consent. So far as the age of P.W. 11 is concerned her father P.W. 12 Naradlal Sahu deposed in para 11 that when his daughters were admitted for Class 1, it was he who took them for admission and on the basis of memory, orally he stated the date of birth of his respective daughters and he had not submitted any certificate in the school at the time of admission in Class 1. Also the first entry of Class 1 and transfer certificate after pass out in Class 5 are not produced. The prosecutrix may not be held minor on the basis of Ex. P-6. It is also submitted that Gum Insan is the first information to the police regarding the offence. Said Gum Insan deliberately not proved by the prosecution though true copy was produced along with charge sheet and document. The said true copy was used by the appellants in their defence during cross-examination of P.W. 12 at para 9. As per Ex. D-2, the age of prosecutrix P.W. 11 was written as about 16 years and the age of prosecutrix (since deceased) was written as 18 years and also one more information given is that the elder daughter studied till 8th and the younger daughter failed in Class 10th. Same was denied by P.W. 12. This document was filed along with charge sheet and the 10 not proved this document for the reason best know to him as he answered in para 22 that he had not come with original Rojnamcha Sanha for Gumsudgi and copy is annexed in the case and also no signature appearing in the copy of Rojnamcha Sanha. It is the duty of prosecution to prove the original Rojnamcha Sanha regarding Gum Insan. Learned counsel submits that to prove the age is the duty of prosecution. When the document is suspicious and the best available document was not produced, it will not be safe to rely over Ex. P-6 for age of prosecutrix P.W. 11. It is not proved that the prosecutrix was minor. So far as commission of intercourse is concerned, P.W. 11 the prosecutrix deposed that on account of proposal of marriage by the appellant Sanjay Kumar and Kaushal Kishore to them, they both went by bicycle to village Dhanora. They reached to the house of Dulasia, kept the bicycle and informed their friend Dulasia that they were going to see movie. Thereafter out side, the appellant Mohan and Sanjay met. Mohan gave her one bicycle. Both sisters traveled upto Madoda tampo stand and thereafter all the appellants and both the prosecutrix took a tampo and reached Power House, Bhilai then they sat in a passenger train and at Ghoda Dongari, they stepped down and thereafter by Jeep they went to Sarani. Appellants took a house on rent where inside the room her elder sister and Kaushal Kishore on one side and she herself and appellant Sanjay Kuamr on the other side used to sleep and as per this witness she refused for removing her clothes but appellant Sanjay Kumar removed her clothes and committed intercourse with her and Kaushal Kishore committed intercourse with her elder sister. As per para 13, both the sisters went voluntarily. As per para 14, she states that it is bad to leave the house for any body''s offer but she admitted that even then she left her house. When her statement is seen it goes to show that voluntary act of both the sister is there then it is a case of consent and on account of evidence available, the appellants may not be convicted. Further it is submitted that all the appellants may be acquitted. There are no evidence against the appellants Mohan and Arun as both the sisters accompanied voluntarily of their own and these appellants not compelled them for any illicit intercourse or marriage hence the appeal may be allowed.

Learned counsel for the appellant placed reliance in the matter of Birad Mal Singhvi Vs. Anand Purohit, in which Hon''ble Supreme Court held that no document showing date of birth, the material on which the date of birth was recorded not however adduced, documents did not have probative value as proof of age of a person in school register is of evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. Further reliance is placed on Jagtar Singh Vs. State of Punjab, in which Hon''ble Supreme Court held that in the school certificate name of original school from which students were transfered not mentioned such school certificate cannot be relied upon for prove of the age. He further relied on Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, , wherein the Hon''ble Supreme Court held that "in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive." Also reliance is placed on S. Varadarajan Vs. State of Madras, in which Hon''ble Supreme Court held that no threat or inducement on part of accused, girls insistence on marrying him, is no taking, father of girl keeping her at the relatives house, guardianship of her father is continuous. Further reliance is placed on Murugan @ Settu Vs. State of Tamil Nadu, in which Hon''ble Supreme Court laid down that authenticity of entries may also depend on whose information such entry stood recorded and what was source of information meaning thereby that such document may also require corroboration in some cases. Further reliance is placed on Moti Lal Songara Vs. Prem Prakash @ Pappu and Another, wherein Hon''ble Supreme Court while discussing the article 142 of the Constitution of India held that when infrastructure collapsed, the superstructure is bound to also collapsed. Learned counsel submits that the died prosecutrix did not depose anything against Kaushal Kishore and therefore, he may not be convicted on the basis of merely statement of P.W. 11 who is not eye-witness of the incident.

On the other hand, learned counsel for the State opposed the arguments and supported the impugned judgment of the trial Court.

In order to appreciate the arguments advanced by respective counsel, I have examined the evidence available on record.

Section 363 and 366, 375 and 376 of I.P.C. is quoted below:--

"363. Punishment for kidnapping.--Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to many any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; l[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--

Sixthly--With or without her consent, when she is under sixteen years of age.

376. Punishment for rape.-- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

(a) being a police officer commits rape--

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman''s or children''s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."

In the present case, age of the prosecutrix PW. 11 is important. P.W. 11 prosecutrix deposed in para 9 that her date of birth is 14-7-1981. No basis of this narration is deposed. Ossification test for the purpose of assessment of age as advised by P.W. 10 Dr. Mamta Pandey is not conducted. Only document which is adduced is Ex. P-6. Copy of Dakhila Kharij register wherein the date of birth is mentioned as 14-7-1981. There is no column in this Ex. P-6 regarding the basis of date of birth. P.W. 7 is the witness who proved this document. As per evidence, entries are not made by this witness. This witness during the course of his posting gave the copy of the said entry. No document pertaining to the date of birth is available in the said register. This school was middle school and as per cross-examination, children after passing Class 5, take admission in this school on the basis of transfer certificate. In nutshell the basis of entries of Ex. P-6 is transfer certificate which is not produced or collected during investigation. As per P.W. 12 the father in para 1 himself admitted his daughters at class 1 and at the time of admission, he on the basis of memory orally recorded the date of birth of his daughters. As admitted he had not presented any document at the time of admission in Class 1. He also deposed in para 7 that both daughters born at village Khamariya. This witness and her both the daughters were residing at village Khamariya at the time of incident. He admitted that the children born in the village are registered with Kotwari book. P.W. 9 D.S. Rajput, the 10 deposed in para 25 that on account of non-availability of Kotwari book, he had not seized such register. But as per prosecutrix father, children born in the village get registered in the Kotwari book. It goes to show that the 10 was not vigilant enough to collect the basic document i.e. Kotwari register. It is not a case that some where else P.W. 11 bora. She was residing in the same village right from her birth. Thereby prosecution failed to offer any acceptable explanation as to why said Kotwari register is not seized or collected, why the transfer certificate the basis for admission at Class 6 was not seized and collected, why the entry in the Class 1 regarding the date of birth of P.W. 11 not collected and adduced. This fact creates a suspicion. If we examine the other connected evidence, P.W. 12 father in para 7 deposed that his elder daughter (since deceased) was unsuccessful in Class-8 and her younger daughter P.W. 11 never unsuccessful in school exam. As per Ex. D-2 Rojnamcha Sanha regarding Gum Insan, it is mentioned that younger daughter P.W. 11 unsuccessful in Class 10. As per Ex. P-6 Dakhil Kharij register, prosecutrix P.W. 11 left the school after 4 days of incident i.e. 11-6-1996 and as per the prosecution case for 8 days, the prosecutrix lived at village Sami far away from the village and she was recovered by the 10 through recovery memo Ex. P-14 means from 7-6-1996 upto 18-6-1996, this prosecutrix along with her elder sister was out from the village and they were at Sami Distt. Betul. It is hard to believe if till 18-6-1996 she was along with the appellants then how she left the school on 11-6-1996. This entity creates suspicion. Nothing is shown in the entries of elder sister that she passed or unsuccessful in which class. Also as per Ex. D-2, Rojnamcha Sanha Gun Insan recorded by P.W. 12 himself elder daughter studied till 8th and younger daughter unsuccessful in Class 10. When we compare this document to Ex. P-6, it goes to show that as per Ex. P-6 after passing in Class 8 P.W. 11 left the school but as per Ex. D-2, before incident P.W. 11 was unsuccessful in Class 10. For the reason best known to 10 the Ex. D-2 was not proved by him though this is the first information regarding the incident and thereby a very important document. The presence of strong suspicion and different versions of P.W. 12 father in the court and Ex. D-2 goes to show that non-proving the document D-2 was probably with some purpose and purpose is to hide the date of birth of younger daughter. As per entry the elder daughter admitted in Class 1 on 1-7-1992 and thereafter what happened for her further examination either fail or pass as in the case of other entries gave in Sr. No. 109, 112 is not mentioned. Also it is mentioned in case of younger daughter that she was shown as 8th pass and left the school on 11-6-1996. There is a very strong suspicious about the date of school leaving because she was at Sarni along with appellant till 11-6-1996 coupled with the fact that basic documents were not collected and produced. A minute scrutiny of the evidence goes to show that the date of birth of prosecutrix P.W. 11 is not proved beyond all reasonable doubt and the absence of any explanation for non-presentation of basic document i.e. kotwari register though available goes to show that production failed to prove that at the time of incident, the prosecutrix P.W. 11 was below 18 years and minor.

Upon considering the entire evidence, it goes to show that the prosecutrix were consenting party. Only on the basis of offer of marriage on the date of incident itself both the real sisters accepted and they went to village Dhanora in his bicycle, kept the bicycle in the house of Dulasia, their friend and told a lie that they are going to watch a movie. Thereafter they met appellants Mohan and Sanjay. Mohan gave one bicycle to these sisters and they went till Madoda tampo stand thereafter the bicycle was returned to appellant Mohan then all the appellants and both sisters sat on a tampo, reached to Power House Bhilai, then they took a passenger train and step down at Railway Station Ghoda Dongri thereafter in the jeep they went to Sarni, Distt. Baetul, took one room in rent. As per statement, appellant Arun and Mohan used to sleep outside the room and inside the room, both the sisters and appellants Sanjay Kumar and Kaushal Kishore used to sleep. As per her statement, appellant Sanjay wanted to removed her cloth, she refused, the appellant Kaushal Kishore wanted to remove the cloth of her elder sister and even after refusal, they committed rape for 7 or 8 days. The elder sister prosecutrix (since deceased) is not examined before the trial Court. There is no specific evidence by P.W. 11 that she saw herself from her own eyes committing intercourse by appellants Kaushal Kishore with her elder sister. In absence of substantive evidence, appellant Kaushal Kishore may not be convicted only upon evidence of P.W. 11 which does not inspire confidence regarding the forceful or against will and consent intercourse as required by law. She admitted in para 13 that both the sisters voluntarily gone to Sami. She admitted that from Dhanora to Srani she and her elder sister not protested or said anything to anybody. Very surprisingly this prosecutrix replied in para 16 that even if some other person give her offer for marriage then again she will accompany him. It goes to show about free behavior of her. Intercourse was done in a room for 7-8 days where there was no privacy. In view of this Court, it would not be safe to hold that these acts are against her will and consent.

In view of above, this Court is of the view that the story narrated by the prosecutrix does not inspire confidence and not seems to be credible, clinching, admissible and trustworthy and it is a case of consent. So far age is concerned, the age of the prosecutrix P.W. 11 not proved beyond doubt that she was minor at the time of incident, and benefit goes to the appellants.

Considering the above facts and circumstances of the case and in view of the principles laid down in the cited case laws, I am of the view that the prosecution has failed to prove commission of kidnapping of minor girls and after her kidnapping, commission of intercourse thereby commission of offence punishable under Sections 363, 366 and 376 of I.P.C.

In the result the appeals filed by all the appellants are allowed. Conviction and sentence imposed on them by the trial Court are set aside. They are acquitted of the charges. Appellants are on bail. Their bail bonds shall continue for a further period of six months as per requirement of Section 437-A of the Code. The fine amount if deposited be refunded.